Sunday, January 17, 2010

It is over. Ukraine has spoken and in doing so had sounded a strong rejection to President Victor Yushchenko's polices of divisions and destabilization, ending his five years of terror and betrayal of democratic values.

It cost over one billion dollars and still is not yet over, but the first round of voting in the Presidential election has delivered Ukraine a massive victory and a sound defeat for Yushchenko.

The results of the exit polls reflect early predictions and the 2007 Parliamentary results.

Victor Yanukovych leads the race with 34.7-37.7% of the vote followed by Yulia Tymoshenko with 24.8-26.1%

In what was seen as a referendum on Victor Yushchenko's term of office Yushchenko has only managed to return 5.1-5.8%.

The first round was not even close. Our Ukraine failed to win support, Yushchenko was never in a position to come close to out polling Yulia Tymoshenko. Combined Our Ukraine only just held on to their 12% to 14% they won in the 2006/2007 election.

Whilst it is still too early to make a definite prediction on the likely second round results odds are that Yanukovych will go on to win the Presidency But Tymoshenko has proven that she is capable of giving him a run for his money. The fact that she is in the upper end of expectations down from her 2007 Parliamentary is a encouraging.

The reality is that the direct election of head of state is not worth the cost, time and problems it has caused. Ukraine would have been better off electing its head of state by a constitutional majority of the peoples democratically elected Parliament.

The other change that would have been beneficial is if Ukraine had adopted a single round preferential voting system the whole election would be over and Ukraine would know the outcome by now.

Still its time to celebrate Yushchenko's term of office and reign of terror, division and destabilization has come to an end. This is a great victory for Ukraine and democracy itself even at a cost one billion dollars.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
”

The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.